Tag Archives: access to DNA

A Few Things We’re Thankful for this Season

Before we break to celebrate Thanksgiving, let’s pause to remember what we’re thankful for. . .

  • The fact that the Massachusetts Declaration of Rights provides for three co-equal branches of government: Executive, Legislative, and the Judiciary.
  • The work of our Amicus Committee in Bird and Fisher. Our Bird brief brought clarity and predictability to the estate planning process, and our Fisher brief articulated our long held commitment to diversity and inclusion in the legal profession.
  • The passage of the Massachusetts Alimony Reform Act, a great example of true grassroots activism, coalition building and collaboration. Democracy is not always efficient, but the process was exemplary, allowing stakeholders to speak and be heard.
  • The passage of the Transgender Equality Rights bill. This bill was 5 years in the making, and it was high time that Massachusetts provided important protections to the transgender community.
  • The CORI Sealing Order was made permanent by the Boston Municipal Court. This will allow multiple motions from different districts to be heard in one of the courts with jurisdiction over a case to be sealed.  More important it facilitates re-entry.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

Advertisements

1 Comment

Filed under Uncategorized

Innocence Programs Poised for New DNA Law

As we reported last week, the new DNA law – now known as M.G.L.C. 278A – will provide post-conviction access to DNA and testing for those who assert factual innocence.  The new law not only provides access to DNA and testing but it also provides a roadmap for the preservation of evidence in cases.  We wanted to know how case screenings and assignment of counsel will be handled with respect to the new law.  We reached out to Lisa Kavanaugh, Program Director for the Committee for Public Counsel Services Innocence Program, and Gretchen Bennett, Executive Director at the New England Innocence Project, to learn more.

The CPCS Innocence Program and the New England Innocence Project (NEIP) are both supported by a grant from the Wrongful Conviction Review Program at the Bureau of Justice Assistance, a component of the Office of Justice Programs.  The Office of Justice Programs works in partnership with the justice community on the federal, state, local and tribal level to identify the most pressing crime-related challenges confronting the justice system and providing information, training and innovative strategies for addressing these challenges.  NEIP is also supported by generous private donations.

Under the new law, CPCS will receive requests from the courts and directly from inmates.  Initial requests of this nature go to the CPCS Private Counsel Appellate Division, and if the request is found to be premised on a claim of innocence, the request is referred to the CPCS Innocence Program.  Applicants are asked to complete a referral questionnaire before the case is then screened to determine whether it meets the criteria for the Innocence Program, and if so, counsel is assigned.  There are over 700 attorneys who are certified to handle appeals or post-conviction matters at CPCS.  Roughly 300 attorneys are considered “active” – attorneys that take at least one case assignment per year.  In order to be certified to handle these appeals, the attorney must complete an application process, a certification process and specific training coordinated through CPCS.

NEIP is an independent, nonprofit organization that was founded in 2000 to assist persons convicted of crimes who claim factual innocence.  Individuals seeking NEIP’s help must fill out a 26 page questionnaire to apply for assistance.  Screenings of these cases are handled by professor-led law clinics at local law schools where students sift through the requests and make recommendations as to whether NEIP should move forward on a case.  These recommendations are presented to the case review committee at NEIP, a group composed of law professors and expert attorneys with experience in prosecution or defense.   If the case review committee decides that NEIP should accept the recommendation for representation, NEIP draws on its network of private law firms who take these cases on a pro bono basis.  The most experienced appellate attorneys at these firms handle innocence issues for NEIP.  Included in the network of firms that are getting ready now to move forward with innocence cases under the new law are BBA Sponsor Firms Goodwin Procter LLP and Skadden, Arps, Meagher & Flom LLP.

Thanks in part to the new law, NEIP has 10 cases ready to go forward.

 

-Kathleen Joyce
Government Relations Director
Boston Bar Association
Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

1 Comment

Filed under Uncategorized

Access to DNA Bill to Gov’s Desk

Wednesday was an eventful day on the House floor.  Early Tuesday evening, the BBA was notified that the Access to DNA bill (S 1987) would be taken up by the full House the very next day.  As we reported in Issue Spot last summer, the Senate unanimously passed the bill in July.  With yesterday’s passage in the House, the bill is now on its way to Governor Patrick’s desk.

Before the DNA bill was taken up, House Speaker Robert DeLeo gave his annual address to the full House (read text or watch video).  The Speaker used the opportunity to outline his agenda for the remainder of the session.  Shortly after the Speaker made his remarks, House Chairman of the Judiciary Committee Eugene O’Flaherty introduced the DNA bill.  Chairman O’Flaherty, who in past sessions actually sponsored the DNA bill, has always been a strong advocate of this legislation.  Chairman O’Flaherty described the legislation as “monumental,” and went on to say that “what is in front of you today is a piece of legislation all of us can be very proud of.”

O’Flaherty then introduced his Vice-Chairman, John Fernandes, who sponsored the bill this session in the House.  He described the story of Kenneth Waters who spent 18 years in jail for a crime he did not commit and then outlined the provisions of the bill.  Representative Fernandes noted that this bill has been around for several legislative sessions but it was the BBA’s Task Force (Issue Spot wrote about them here) that was able to carve out the objections and create a bill that was acceptable to everyone.  S 1987 has the support of the Massachusetts Attorney General, the Massachusetts Chiefs of Police Association and most of the District Attorneys.

As with any new legislation, people want to know “what’s it going to cost?”  Fortunately, this bill will cost the state very little.  The bill requires that any individual filing a motion for testing bear the cost – to the extent they are able to – and there is federal funding through the Department of Justice that specifically off-sets the costs of post-conviction DNA testing.

Rep. Fernandes said that whatever the members’ doubts have been about costs or impact, it has to be overcome by our obligation to get it right.  He gave a few quick stats:

  • There have been over 280 cases across the US in which post-conviction access to DNA testing has led to releases or reversals of decisions – some of which have led to the conviction of the actual perpetrator.
  • 17 cases involved persons on death row.
  • The average length of time served by those wrongfully convicted is 13 years.

Rep. Fernandes concluded by saying, “We hold freedom highest among the rights that we cherish.  One day, one week, one year, is too long for anybody [who is wrongfully convicted] to be held in prison.”

Following the remarks on the House floor, the DNA bill passed unanimously.  Since there were no changes from the version the Senate passed this summer, the bill goes directly to the Governor’s desk and he has 10 days to sign it.  Assuming the Governor signs it – and indications we have suggest he will – the legislation will become law after 90 days.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail issuespot@bostonbar.org

3 Comments

Filed under Uncategorized

Celebrations in the Senate Before the Summer Recess

In the days and even hours leading up to the legislature’s unofficial summer recess last week, there was a flurry of activity in the State House.  In the hubbub of lawmaking that took place, there were a few no-brainer bills that passed, but more contentious ones – like the court reorg bill– came down to the wire.  Among the bills passed was the long awaited and widely supported alimony reform law.  Sailing through with unanimous support in both branches of the legislature, it will make its way to the governor’s desk once agreement is reached between House and Senate differences in the bill.  Also receiving a unanimous vote in the Senate was the bill to provide post-conviction access to DNA.

To an outside observer, or any of the tourists trying to peek their heads inside the jam-packed upper gallery of the Senate Chamber last Thursday, it may have seemed like just another formal session in the Senate.  Senators milled around the chamber, staff came and went.  At 1 p.m., the Senate convened and immediately went into a recess.  Thirty minutes later, Senate President Murray was at the rostrum long enough to recite the pledge of allegiance before recessing again for a few moments.  Over the next hour, after a whirl of activity on various Senate bills, alimony reform was finally taken up and engrossed by a roll call vote of 36-0.  Applause broke out in the Senate Gallery and in the hallway outside.

Next up: access to DNA.  Senator Cynthia Creem took the floor and spoke in support of the bill.  She recognized Betty Anne Waters and the BBA for their contribution to this legislative effort, drawing members of the Senate to stand and applaud their work.  Seven amendments to the bill were then taken up.  Of those seven, two were withdrawn, one was rejected, and the remaining four were adopted.  When the roll call was taken, the bill passed 37-0.

It may have looked easy and effortless, but it actually felt chaotic.  The day before, Senate Ways & Means released the access to DNA bill with improvements and changes.  After reading through the revised bill, the BBA had a few suggestions and asked Senator Creem to file an amendment, to which she agreed.  On the morning of the scheduled Senate debate, other senators filed even more amendments to the bill.  These last minute amendments sparked discussions in the Senate hallways and on email.  Even in the moments before the start of the Senate session we were still trying to fix loopholes that the additions to the bill had opened up.

Then, finally…a signal from the Senate floor.  A senior Senate staffer looked towards the gallery and flashed a thumbs up. Just like that, it was over.  The bill had passed unanimously, capping off a monumental afternoon for those who had labored for years on this issue.  While pausing to take in what had just happened, it was nice to see the House sponsor, Representative John Fernandes, waiting one floor down outside the Senate Chamber.  Rep. Fernandes indicated that he is looking forward to taking this issue up on the House side once the legislature comes back from its summer recess.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

 

Leave a comment

Filed under Uncategorized

State House Update

With less than 8 weeks left for formal legislative sessions, the Legislature’s focus has shifted away from the state budget and onto other, significant policy issues.  Last week two conference committees were named to reconcile the differences between the House and Senate versions of the state budget and the court reorganization bill.  This week the Judiciary Committee heard testimony on two bills of importance to the BBA.  Here’s a snapshot of some of the things we’re keeping our eyes on.

Court Reorganization Bill in Conference

The Court Management Conference Committee has been appointed to come up with a single version of H 3395 and S 1911.  In May, both the House and Senate advanced the court reorganization bills with unanimous votes.  While both bills would split trial court oversight between civilian court administrators and judicial managers and impose stricter hiring standards with wide reforms relative to job recommendations, there are differences between the bills.  For instance, the Senate’s bill eliminates several new management positions proposed by the House bill.  The six members of this conference committee are Senators Creem, Joyce and Tarr and Representatives O’Flaherty, Dempsey and Winslow.

State Budget in Conference

With budget deliberations complete in both branches, the Budget Conference Committee, the group tasked with negotiating the differences into a single budget bill, met for the first time on Wednesday.  The final budget has to be in place by July 1st, but their work must be resolved before that in order for Governor Patrick to have the required statutory 10 days to review the budget proposal and offer amendments and vetoes.  The six members of the Budget Conference Committee are Senators Brewer, Baddour and Knapik and Representatives Dempsey, Kulik and deMacedo.

June Judiciary Hearing

Yesterday the Judiciary Committee held a public hearing lasting nine hours in a packed Gardner Auditorium.  The BBA participated in the hearing by supporting two bills on the agenda.  The BBA submitted written testimony in support of the Transgender Equal Rights bill, joining with advocates from theMassachusetts chapter of the ACLU.  The Transgender Equal Rights bill will extend explicit protection in discrimination and hate crimes cases to transgender people.

The second piece of legislation, S 753 and H 2165 the Access to DNA bill, will provide post conviction access to DNA evidence.  David E. Meier, Martin F. Murphy, Gregory J. Massing, and David M. Siegel, all experts in the criminal justice system and members of the BBA Task Force to Prevent Wrongful Convictions, testified on behalf of the BBA in support of legislation that would put in place a mechanism for post conviction DNA evidence testing.  The panel discussed their work on the Task Force, presented the need for this statute and set the stage for a group from the New England Innocence Project which followed with compelling stories of how Massachusetts’ lack of an access to DNA testing statute has harmed them.

Betty Anne Waters shared her story.  Her brother Kenny was wrongfully convicted of murder and robbery in 1983, and spent 18 years in prison while Betty Anne earned her college and law school degrees in order to represent and exonerate him.  The Committee also heard from Dennis Maher who was wrongfully convicted of two rapes and an attempted rape.  Dennis was sentenced to 20 to 30 years in prison but was finally released after DNA proved he did not commit those crimes.  Dennis’ Op Ed describing what happened to him appeared in yesterday’s Boston Herald.

Alimony Reform Moves Favorably from Judiciary

The Alimony Reform Act, S 665, was reported favorably by the Judiciary Committee last week.  It is expected that the House will debate the bill next Wednesday.  The bill will move on to the Senate soon after the House finishes its debate.  You can read more about the BBA’s efforts on the Alimony Reform Act from our coverage here on Issue Spot.

Human Trafficking Bill Moves to the Senate

One bill that the BBA is watching but has not yet taken an official position on is the Human Trafficking bill.  This bill would establish state crimes of human trafficking and has already passed the House.  Attorney General Martha Coakley and Suffolk County District Attorney Dan Conley have been champions of this legislation.  Our Criminal Law Section began discussing this issue after the AG outlined her legislative priorities at a BBA program held in early April.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  Please send your comments to issuespot@bostonbar.org

1 Comment

Filed under Uncategorized

A Race to Avoid Being Dead Last: MA Needs Access to DNA Now

In less than two weeks, the Judiciary Committee will be holding a public hearing on the BBA’s bill on access to DNA evidence.  Sponsored by Senator Cynthia Creem and Representative John Fernandes, S 753 and H 2165 are on the June 8th agenda in Gardner Auditorium.  Massachusetts likes to think of itself as cutting edge and as an innovator of ideas and practices.  But the sad truth is that Massachusetts is one of only two states that does not guarantee access to DNA testing.  Oklahoma is the other.

The hearing is just the next step in a process that began in the fall of 2008 when then BBA President Kathy Weinman formed a task force to study reforms needed in Massachusetts to reduce the risk of convicting innocent people.   After fourteen months of work, the Task Force released its report titled Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.  Guiding the work of this Task Force was the understanding that for every person wrongfully convicted, a criminal is free to commit more crimes.

This Report, an impressive achievement, did not just sit on a shelf gathering dust after it was published.  Instead it has been a critical part of the conversations we’ve had with members of the legislature and our partners in public safety.  We’ve discussed the process that led to the Report and described how it’s more than just undoing a wrongful conviction, but bringing justice to victims by convicting the guilty.  In all of our meetings there has been a shared understanding of the importance of having a statute like this in Massachusetts.  Often we’ve been met with enthusiasm to help get this done in Massachusetts, and also questions as to why this hasn’t been done before.

An access to DNA statute is important because it is not uncommon for a person to exhaust all possible appeals without being allowed access to DNA evidence from the case.  Sometimes the DNA evidence that was available at the time of the defendant’s trial was never tested or the methods of DNA testing used at the time of the trial were inexact, yielding unreliable results.

In practice, Massachusetts does much of what this bill proposes.  In many cases, access to DNA is granted to the defendant.  The Massachusetts State Police Crime Lab maintains all DNA evidence indefinitely and their facilities meet the highest standards of the field.  To his credit, Suffolk County District Attorney Dan Conley has been doing this for years.  The problem is that none of this is required by law.

Massachusetts has to pass this bill now.  The Oklahoma Bar Association passed a resolution last September establishing a commission to address the reliability and accuracy of convictions in their state.  This comes two years after we created our Task Force and nearly one year after Getting it Right was released.  Massachusetts could end up being the only state in the country without post-conviction access to DNA.  Wouldn’t that be embarrassing?

-Kathleen Joyce

Government Relations Director

BostonBar Association

Comments are disabled for this blog.  Please send your comments to issuespot@bostonbar.org

Leave a comment

Filed under Uncategorized

The BBA’s Getting it Right

Many people view the legislative system as being highly mechanical due to the complexity of the rules, laws, and procedures that govern it; however, the process really begins in a very basic way.  Each law starts as an idea which can come from anyone: an individual or group of citizens, a legislator or legislative committee, the executive or judicial branch, or a lobbyist.

Every year, thousands of ideas are heard before the Massachusetts Legislature, but very few are actually incorporated into law.  So, what about a bill determines its success?  Or conversely, what sends a bill into an endless loop of study sessions and delays?

Any good proposal starts off as a simple bill.  You need to find good powerful sponsors who care about it and will try to present the bill early.  You need grassroots support and you need an early and aggressive education campaign.

Many things go into crafting a simple bill that legislators will want to sponsor.  Simple bills are ideas that seek to improve upon a current law or solve a problem in the current law.  Part of the BBA’s role in this process is to bring together the experts on a particular topic.  One of the ways that the BBA assembles experts is in the formation of a task force to study a topic and to issue recommendations for improvement.

Take, for example, the BBA’s Task Force to Improve the Accuracy and Reliability of the Criminal Justice System.  Formed in September 2008 by then-President Kathy Weinman, the Task Force constituted the broadest group of criminal justice participants ever assembled by a Bar organization to address wrongful convictions.  Under the leadership of its co-chairs David Meier and Martin Murphy, the task force sought to develop recommendations that would increase the accuracy and reliability of the criminal justice system.

The Task Force released its report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, in December 2009 at a press conference held at the BBA.  Members of the task force fielded questions from the media and participated in interviews with outlets such as the Boston Globe and Neighborhood Network News.

The report makes three recommendations in the area of forensic science:

(1)   enactment of a Massachusetts statute to guarantee post-conviction access to DNA testing and to require preservation of biological forensic evidence.

(2)   expanding the membership and function of the state’s Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors.

(3)   create protocols and training in best practices for evidence collection, processing and retention.

While the release of the report marked the culmination of the Task Force’s work, the lobbying efforts were only just underway.  Members of the Task Force met with the chairs of the Joint Committee on the Judiciary, answering their questions and garnering their support.

But there is more work to be done because, in recent years, similar bills dealing with forensic evidence issues have stalled in the legislature.  This work will include partnering with the New England Innocence Project, along with the Committee for Public Counsel Services and the American Civil Liberties Union, both of which have filed similar proposals.

The energy around the Task Force’s work still continues.  Last month, the BBA hosted a program that featured an engaging panel discussion regarding wrongful convictions and ways to improve upon the Commonwealth’s criminal justice system.  The panel included Jennifer Thompson-Cannino, Chairman Eugene O’Flaherty, Honorable Margaret Hinkle of the Superior Court Administrative Office, Robert Merner (formerly of the Boston Police Department), Joseph Savage Jr, Martin Murphy, and David Meier.

The BBA thanks the Task Force for its tireless efforts, and is pushing for this good idea to be passed.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog. Please send your comments to issuespot@bostonbar.org

Leave a comment

Filed under Uncategorized